1. Both pleas are good. The Court of First Instance had only jurisdiction to try the issues remitted to it by the Appellate Court, and was functus officio in other respects, and could not make a reference to arbitration, which was only within the jurisdiction of the Appellate Court--see Gossain Dowlut Geer v. Bissessur Geer 22 W.R. 207. Further, it is clear that one of the arbitrators refused to act, and the only course open to the Court was, under Section 510, to appoint a new arbitrator, or supersede the arbitration, and proceed with the suit. The Court could not pass a decree on the award of the remaining arbitrators.
2. The decree of the lower Court is reversed, and the case remanded for trial. Costs to follow the result.
3. I am of the same opinion. Two pleas in appeal have been raised in this case. The first is, that the order of reference, dated the 20th April 1882, was illegal, and the second that the absence of one of the arbitrators vitiated the award, and that the decree carrying out the terms of the award was therefore wrong. I am of opinion that when a Court has disposed of a case and passed a decree upon it, the jurisdiction assigned to the Court ceases, so far as that case is concerned, and can be revived only in the manner and to the extent which the law prescribes. In the present case, when the Subordinate Judge had passed his decree, he had no power to interfere with it except by review or in consequence of the direction of a superior Court. And as soon as the appeal was filed in the Court of the District Judge, that Judge only was competent to deal finally with the case. What I mean by 'dealing finally' with it is the power to say yes or no to the plaintiff's claim. Now, an order passed by the District Judge under Section 566 of the Civil Procedure Code has not for its object the transfer of the Appellate Court's jurisdiction--its power to say yes or no to the claim--to the Court of First Instance. It amounts to nothing more than a delegation to that Court of authority to take evidence upon certain issues which it is necessary to determine, and which may be dealt with either by the Appellate Court under Section 568, or by the Court of First Instance on remand under Section 566, at the discretion of the Appellate Court.
4. The only tribunals which really have power to dispose of disputes are those which the State has established. Those tribunals can only delegate the powers conferred on them by the Legislature if, and in so far as, the Legislature expressly authorizes them to do so. It is obvious that if a Court has jurisdiction to deal with a particular suit, it may delegate that power, but it cannot delegate a case which it cannot itself try. I think that the principle of the maxim delegatus delegari non potest applies here, and that the Subordinate Judge being, in this sense, himself a delegate in the case from the District Judge, could not himself delegate it to another tribunal, that his order of reference was therefore ultra vires, and that everything done in consequence of it was invalid.
5. In regard to the second point I agree with my brother Oldfield that the presence of all the arbitrators at all meetings, and above all at the last meeting, when the final act of arbitration is done, is essential to the validity of the award. The learned pleader for the respondent has cited two decisions of the Calcutta High Court to the contrary effect. One of these is Kazee Syud Naser Ali v. Musammat Tinoo Dossia 6 W.R. 95 in which it was held that the absence of one arbitrator out of three who have been appointed does not vitiate the award, if the parties agreed to be bound by the decision of a majority. I confess that I am unable to agree in this view of the law. What the parties to a reference to arbitration intended is that the persons to whom the reference is made should meet and discuss together all the matters referred, and that the award should be the result of their united deliberations. This conference and deliberation in the presence of all the arbitrators is the very essence of the arbitration, and the sole reason why the award is made binding. In a case recently decided by this Court--Rohilkhand and Kumaon Bank v. Row I.L.R. 6 All. 468 I took occasion to express my views upon a cognate subject, holding that no judgment can be given in a Court consisting of several Judges, unless those Judges have conferred together, heard evidence and arguments together, and formed their opinions upon the entire arguments and evidence so heard. I held that the only proper decree was that of the majority after such conference. Here the same principle should be applied. Whatever may have been the arbitrator's motive for withdrawing, his non-participation in the deliberations of the others makes their award ultra vires and of no effect.
6. I therefore concur with my brother Oldfield that the appeal should be decreed and the case remanded to the Lower Appellate Court under Section 562 of the Civil Procedure Code. Costs to follow the result.